Justice Scalia’s Majoritarian Theocracy

THE Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each.

In Lawrence v. Texas, for example, where the court invalidated Texas’ ban on homosexual relations between consenting adults, Justice Scalia complained that: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He added: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.’”

Justice Scalia made these remarks 12 years ago — and predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision. It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court.

In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy. The model he appears to be embracing is that of the traditional British Constitution; until recently, Parliament was deemed to be Britain’s “supreme court.” It could overrule judicial decisions, but courts could not invalidate parliamentary legislation.

We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that he believes violate the First Amendment and various federalism provisions of the Constitution, as well as affirmative action measures that he thinks are in conflict with the 14th Amendment.

But who knows? Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution, as otherwise he might be thought of as one of those “unelected lawyers” who so threaten our democracy. Not only an unelected lawyer, but — a patrician. For he said in his Obergefell dissent that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Obergefell seems to obsess him. In a speech at Rhodes College in Memphis, he said that the decision represents the “furthest imaginable extension of the Supreme Court doing whatever it wants,” and that “saying that the Constitution requires that practice” — same-sex marriage — “which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” The decision, he said, “had nothing to do with the law.”

The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical. It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.

In a talk last month at the Union League in Philadelphia, he criticized the court’s interpretations of the establishment clause of the First Amendment, which prohibits the government from “establishing” a religion. He did so, according to the moderator, Robert P. George, a professor of jurisprudence at Princeton, on the ground that “there is no textual or historical basis for the Court’s claim that laws and policies must be neutral not only between different religions, but also between religion and nonreligion.” The implication is that if a majority of Americans reject same-sex marriage on religious grounds, the Supreme Court must bow.

It comes as no surprise that Justice Scalia also said that state and local officials who are not actual parties to Supreme Court cases have no obligation to obey judicial rulings that those officials think lack a warrant in the text or original understanding of the Constitution.

He cited Abraham Lincoln’s remark concerning the infamous Dred Scott ruling that decisions by the Supreme Court are formally binding only on the parties to the case. That’s technically true, but few Americans will agree with Justice Scalia that Obergefell, which conferred rights on millions of Americans, is comparable to Dred Scott, which denied rights to millions by ruling that slaves were not citizens and could not sue in federal courts.

And can Justice Scalia want his own decisions to have diminished and perhaps negligible force until separate lawsuits are brought in each state to enforce them? That implies that state and local officials are free to ignore his gun-friendly decision in District of Columbia v. Heller (holding that the Second Amendment protects an individual’s right to own a gun). Perhaps a few state and local officials will take Justice Scalia up on that offer.